Privileges - Defenses to Int. Torts

Question 1

What is consent?

Answer 1

Defense to intentional harm based on P’s voluntary exposure to D’s contact

Question 2

What are the two types of consent?

Answer 2

1. Express consent:
   P expressly consented to intentional interference of his person/property
2. Implied consent:
   P’s conduct, custom, or circumstance implied P’s consent of intentional interference of his person/property

Question 3

What is consent as a “matter of law”?

Answer 3

Even if P is unable to give consent, it will be implied if:

• immediate action is need to save P’s life
• there’s no indication that P would not consent if able
• a reasonable person would consent

Question 4

Scope of consent

Answer 4

Even if P consents to invasion of his interests, D will not be privileged if he goes beyond the scope of consent

Question 5

What is self defense?

Answer 5

Privilege to use “reasonable force” against threatened harm, in which D “reasonably believes” there is one

Question 6

D may NOT use self defense to:

Answer 6

• Retaliate
• Avoid harm that is not imminent
• Respond to verbal provocation

Question 7

For self defense, what is “reasonable force”?

Answer 7

Only the degree necessary to prevent threatened harm.

- can’t use deadly force unless one is in danger of serious bodily harm or death

Question 8

What is defense of others?

Answer 8

Privilege to use reasonable force to defend another person against attack
* same rules as for self defense

Question 9

What is defense of property?

Answer 9

Privilege to use reasonable force to defend one’s property (land and chattel)

Question 10

What action is first required for defense of property?

Answer 10

Owner must (1) give warning and (2) give sufficient time for intruder to obey request
*unless it appears that immediate violence or harm will happen

Question 11

Can you use mechanical device to defend property?

Answer 11

Depends on state law!

May use only if person would be privileged to use similar degree of force if he was present and acting himself

Question 12

What is recovery of property?

Answer 12

Privilege to use reasonable force to take back possession of chattel taken from him/her

Question 13

When is recovery of property a proper defense?

Answer 13

Must meet three criteria:

1. Property was wrongfully taken
2. Fresh pursuit
3. Reasonable force to take back
   * Many courts allow merchants to temporarily detain assumed shoplifter for 10-15 min

Question 14

Necessity

Answer 14

Privilege to P’s property interest where it is necessary to prevent great harm to D/D’s property or to 3rd persons/their property

Question 15

What are the two types of necessity?

Answer 15

1. Public necessity
   - D does not have to compensate damages
2. Private necessity
   - If there are actual damages, D must compensate damages

Question 16

What is authority of law?

Answer 16

Privilege for authorities of law (police) to use reasonable force make arrest

*A private citizen has a privilege legal authority only if a felony was in fact committed (no room for reasonable mistake!)

Question 17

For authority of law, what are the two types of arrest?

Answer 17

1. Arrest with warrant
2. Arrest w/out warrant
   Police may do:
   - Felony or breach of peace in police’s presence
   - Past felony (police believes happened and has right person)
   - Prevention of felony

Question 18

What is discipline?

Answer 18

Privilege of person whose status/job allows him to use reasonable force to use discipline in certain situations

Question 19

What are the common relationships for privilege of discipline?

Answer 19

1. Parent-child
2. Teacher-student
3. Military officer-subordinate

Question 20

What factors are considered to determine whether degree of force is reasonable for discipline?

Answer 20

• Severity of misconduct
• Age, gender, strength, etc. of person being disciplined
• Motive of discipliner

Question 21

What is justification?

Answer 21

“Catch-all” term privilege (if D’s conduct doesn’t fit in one of the narrower defenses) that there are good reasons D should be exculpated from liability of intentional tort